Display — Planning consent — Advertisement hoarding on site since 1974 — Static display replaced by trionic sign — Claimants issuing discontinuance notice — Trionic sign removed and later replaced with static illuminated display — Prosecution for alteration of hoarding — Whether prosecution abuse of process of court — Whether illuminated display “lesser change” than trionic sign — Section 224(3) of Town and Country Planning Act 1990 — Regulations 5 and 27 of, and Schedule 3 to, Town and Country Planning (Control of Advertisements) Regulations 1992 — Appeal allowed
The claimants were the local planning authority in respect of a property owned by the second interested party (NCP). From the early 1970s, there had been a static advertising display on the wall of the property. Between 1988 and 1993, the display was modified to create an externally illuminated trionic advertising sign, which enabled several different advertisements to be shown, almost simultaneously, in the same space.
Under the Town and Country Planning (Control of Advertisements) Regulations 1992, advertisements had to have either express or deemed consent from the local authority. There was no express consent in respect of the display, but deemed consent was treated as granted for “sites used for the display of advertisements” continuously since 1974, if there had been no substantial increase in the extent, or substantial alteration in the manner, of the use of the site for the display: Class 13 of Schedule 3 to the 1992 Regulations. An issue arose as to whether the advertisement continued to enjoy deemed consent because of the modification. In 1997, the claimants issued a discontinuance notice for the removal of the display. NCP appealed. The inspector dismissed the appeal, but noted that it was common ground that the trionic display enjoyed the benefit of deemed consent under Class 13, and that the discontinuance notice did not relate to the continued use of the site as such, but to the particular display in question.
The trionic display was removed, but, in July 2000, a new static illuminated sign was erected by the first interested party, M plc, and NCP. This resulted in a prosecution, by the claimants, for the alleged offence of displaying an advertisement in contravention of rr 5 and 27 of the 1992 Regulation, and contrary to section 224(3) of the 1990 Act. The prosecution was stayed on the grounds that: (i) it was an abuse of the process of the court because the site had enjoyed consent since 1974; and (ii) there had been a lesser change in the current advertisement from the previous trionic display. The claimants appealed, by way of case stated, on the basis that the judges had misdirected themselves.
Held: The appeal was allowed.
The magistrates’ decision would be quashed and the matter remitted to a differently constituted bench. There was nothing in their decision to suggest that the magistrates had applied the correct test as to whether there had been an abuse of process. There was no explanation as to why it would be unfair for the council to prosecute the interested parties. That would be a matter of judgment for the substantive hearing.
The fact that the original display had deemed consent did not mean that the prosecution in respect of the new display was unjustified. A decision on abuse of process was not the right way to determine whether the new advertisement complied with Class 13. It was not a foregone conclusion. The agreed facts were not sufficient to enable the magistrates to reach a reasonable conclusion that the prosecution was an abuse of process. Moreover, the agreed facts did not form any basis for determining that the current display was a lesser change than the previous display.
Timothy Spencer (instructed by the solicitor to Westminster City Council) appeared for the claimants; Andrew Fraser-Urquhart (instructed by JW Godfrey & Co) appeared for both the first interested party, More Group plc, and (instructed by Hamlyns) the second interested party, National Car Parks; the magistrates did not appear and were not represented.
Eileen O’Grady, barrister
